STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

Law schools train attorneys in the laws generally. Yet as an attorney I have learned over the years that there is no substitute for practical experience achieved after years of working as a DUI, Criminal Defense, Wrongful Death, and Personal Injury attorney. This holds true in defending DUI cases. DUI cases involve a great deal of science in addition to understanding the basic governing rules and regulations and how they apply to a specific client's set of facts. Additionally, Client's may not adequately recall the events around their arrest. Officer's may not properly record pertinent facts supporting the driver's innocence. All together the rules and regulations as applied to the facts tend to make DUI cases very complex. Because of the complexity of the DUI cases many attorney's consider them to be among the most difficult to defend.

Because of this complexity at times attorneys make mistakes when it comes to defending DUI clients . . . mistakes potentially harmful to their clients resulting in loss of the client's driving license, having to pay significant fines, being sent to jail, having to pay huge increases in their insurance rates, and more.

To protect yourself and in order to make a knowledgeable decision in which attorney to hire, consider a few of the following mistakes I have observed made by other attorneys over the years:

Mistake 1 - The Attorney Advises You that the Case Can Not be Won

Let's be real and consider the underlying facts of why an attorney would inform a potential client or a client that their DUI case can not be won. It comes down to the initial intake and the attorney collecting and then understanding all of the facts of the case. I have come to believe that attorney's who do not spend time with the client at the onset in order to properly evaluating all of the evidentiary facts before recommending that the potential client just plead guilty is the single most important mistake the attorney may make when representing the individual for DUI.

In addition to my other practice areas, I’ve been practicing as a Kentucky DUI Defense lawyer since 1999. I typically spend no less than 45 minutes with potential clients collecting information about the traffic stop and the arrest at the beginning of every DUI representation. Let me repeat that: I spend no less than 45 minutes with the potential client collecting facts! Yet I have received calls for second opinions or after their attorney had lost their case from individuals charged with DUI for second opinions where their attorney had recommended a guilty plea. On review of some of those cases where I picked up the representation I went ahead and obtained favorable outcomes for my clients. In my opinion, I have come to believe that after obtaining the police report and looking at the breath test results many lawyers simply advise their client to plead guilty without considering all of the facts which may prove a client's innocence. Some of those facts include errors made by the officer during the roadside standard field sobriety tests, known as SFST's. Other significant facts include the officer's failure to follow state laws and procedures during the collection of the blood, breath, and urine. Sometimes those facts support a finding that the officer was not being accurate in his reporting of the facts.

Then there are potential client's who decide to plead guilty to save money! I call these economic DUI guilty pleas. I do not like them. In reality this type of plea may cost the accused much, much, much more to plead guilty than to fight the DUI. Consider the fact that a DUI today will now remain on a person's driving and criminal history for at least ten (10) years. During that time period, insurance companies will see the DUI in the public record and may increase the rates. The DUI could affect the accused's future employment or prevent entry into the military. The DUI could also affect a person's ability to obtain or maintain a commercial driver's license. Plus, a DUI may prevent a person from traveling into some foreign countries such as Canada. And then there is the family impact. With so much at stake a person should not simply plead guilty to a DUI because they want to save money to avoid paying an attorney to defend them.

There are also other more serious problems with the economic DUI guilty plea. Every guilty plea must be made freely, knowingly, intelligently and voluntarily. If you believe you are innocent (except for cases where the accused does not admit guilt but believes the evidence against them strongly indicates guilt - usually when they had no recall due to impairment) and enter a guilty plea to a DUI you are not being truthful and therefore misleading the court. Additionally, attorney's who recommend such a plea for a low fee may be asking for a malpractice claim.

Mistake 2 - The Attorney Advises You Not to Bother to Fight the Pretrial License Suspension in DUI-1st Cases For Refusals

Another common error I have observed it attorney's who advise their client's to not conduct a refusal hearing because they do not believe that these hearing can be won or worth their time. A refusal hearing can be won. They can often be won based on defenses such as: 1) the refusal was not obtained within two hours of cessation of the operation of the vehicle; 2) the officer failed to read the Implied Consent warning to the driver; 3) the officer did not hear or listen to the accused agree to take the tests; 4) the officer based the refusal on the accused's actions and not words; and etc.

Importantly, by not conducting a refusal hearing the defendant doesn’t get to question the arresting officer. Why is this important? Because this may be the only time the lawyer may be able to question the arresting officer under oath soon after the arrest when the officer's recollection is likely to be accurate.

Mistake 3—The Lawyer Does Not Personally Check Out The Location of the Arrest

I visit the location of the arrest whenever practical or have client's provide me with photographs of the location. Yet it's been my experience that many lawyers don’t visit the arrest location. I believe this to be extremely important. Why? In order to collect evidence which shows the driver's innocence. On visiting the arrest locations I have found security cameras which recorded the stop, the roadside tests, and arrest. I have found debris, obstacles, and inclined pavement which made the roadside tests difficult to perform. I have found reflective surfaces and traffic patterns which interfered with the roadside tests. For example, in one case, the officer claimed that my client's vehicle was weaving on the road and that the road was straight when in fact after visiting the arrest location I discovered that the road was winding and not straight: from the officer's position some distance away he merely saw my client's vehicle following the winding road and erroneously stated my client was weaving. In another example, I used the photos of the scene of the arrest to point out to the officer who testified that he never lost sight of my client that there was a parking structure, dumpsters, a police Swat van, and more which blocked his view so he did loose sight of my client's vehicle at times.

Visiting the location of the stop and arrest simply makes it easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the jury.

Mistake 4— The Lawyer Did Not Explain The Administrative Penalties Associated With a Conviction or a Guilty Plea

It's important that your lawyer explain to the client all of the penalties before the client decides to enter a guilty plea or before deciding to take a matter to trial. It is legal malpractice if the lawyer doesn’t advise the client about all of the penalties, including administrative sanctions, resulting from a conviction.

What are the administrative sanctions? They can include but may not be limited to: license suspension or revocation; license plate impoundment; requirement for a mandatory ignition interlock device; alcohol and drug assessment and treatment program; inability to travel to certain countries; home state license suspension which may be different than Kentucky's; and etc.

I find that this mistake is all too common. And it is important because every guilty plea must be made freely, knowingly, intelligently and voluntarily: not knowing this information may affect the client's rights.

Mistake 5— The Lawyer Did Not Offer the Defendant the Option to File A Motion to Suppress

A lawyer should file, after discussing this with the client and with the client's permission, a Motion to Suppress evidence when it appears that the officer violated the client's constitutional rights. Bringing this motion may result in the court ruling that certain evidence may not be used at the DUI trial. In some cases, the court may rule in the client's behalf which could result in a win of the client's case. However, it is important to note that the court may impose sanctions against the lawyer and client for filing a Motion to Suppress when the facts do not support such a motion.

According to some experts, not filing a Motion to Suppress when warranted prior to trial is a common mistake. It is a mistake as it is a missed opportunity to eliminate some or all of the State's evidence. Just as important, it also provides an opportunity to question the arresting officer and to lock in their testimony for later use at trial.

Additionally, a few Kentucky counties have special programs where the parties (prosecutor and defense attorney) may petition the court to set aside certain misdemeanor guilty pleas if the convicted person meets certain requirements, including the fulfillment of their sentence and payment of all fines. These programs typically apply when a person's career is at risk. Please contact your criminal defense attorney to learn about the availability of these programs.

It’s not often that I am involved with a Driving Under the Influence story before it becomes the news, but it happened in the case of a Kentucky man arrested for DUI / DWI while riding a horse. I received a telephone call from a reporter asking for background information on how the police could arrest and charge a person riding a horse for DUI in Kentucky. Accordingly, I am sharing the information herein.

It seems that Danny Reynolds of Jessamine County, KY, which is located approximately 16 miles from Lexington, Fayette County, Kentucky, had been drinking celebrating his son’s birthday, and then went horseback riding near his home with friends. At the time of his arrest, police reported that Mr. Reynolds allegedly had several beers, marijuana, and moonshine in his possession. Police reported Mr. Reynolds blood-alcohol level as double the legal limit.

Police arrested Mr. Reynolds for violating KRS 189.520 titled "Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability".

Essentially, KRS 189.520 states that "No person under the influence of intoxicating beverages or any substance which may impair one's driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state." KRS 189.520 further states that "(a) If there was an alcohol concentration of less than 0.05, it shall be presumed that the defendant was not under the influence of alcohol; (b) If there was an alcohol concentration of 0.05 or greater but less than 0.08, such fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant; and ( c) If there was an alcohol concentration of 0.08 or more, it shall be presumed that the defendant was under the influence of alcohol. Violating KRS 189.520 is a violation and not a misdemeanor. According to KRS 189.990, violating KRS 189.520 will result in a fine of $20 to $100 dollars for each offense.

So what constitutes a non-motorized vehicle? Typically the list may include, but is not limited to: bicycles, horses, mules, horse drawn carts, skateboards, pedal powered surrey’s, canoes, boats propelled by paddles, electric toy cars, balloons, and more. Based on the county, it may also include non-registered mopeds under 50 cc.

Interestingly, KRS 189.520(2) makes it illegal for a law enforcement officer to not enforce charging a person with operating a non-motorized vehicle while under the influence. According to KRS 189.990, any peace officer who violates KRS 189.520(2) will be fined not less than $35 nor more than $100.

It appears that the Kentucky Legislature will consider amending Kentucky’s DUI laws for the next legislative session beginning January 4, 2011. In many ways, Kentucky appears to be following the guidance of the National Transportation Safety Board to combat hard-core drunken driving, which is urging states to enact stronger legislation to adopt strong countermeasures to stop impaired driving. According to the NTSB, more than 70% of all drunken-driving crashes involved hard-core offenders last year.

Two Kentucky Representatives have prefiled bills for consideration by the general assembly to address hard-core drunken driving:

Representative Mike Harmon, R-Danville, prefiled a bill (BR 33) for consideration by the general assembly session that would increase DUI penalties for repeat offenders. Rep. Harmon advocates changing the existing penalties from a four-tiered structure to a three-tiered structure, increasing the time a DUI remained on a persons driving / criminal history from five years to ten years, and allowing the forfeiture of motor vehicles used in a DUI if the offender’s operator's license had been previously suspended.

Representative Dennis Keene, D-Newport, also prefiled a bill (BR 290) to amend Kentucky’s DUI statutes. Rep. Keene proposes the following changes: 1) amend KRS 189A.005 to expand the definition of "ignition interlock device" ; 2) amend KRS 189A.010 to include driving the wrong way on a four-lane highway among the list of factors for triggering aggravated DUI penalties; 3) amend KRS 189A.070 to provide that a reduction in the time period of a license revocation does not lessen the time required for ignition interlock usage; 4) amend KRS 189A.085 to run the period of a license plate impoundment from the date of sentencing to the day the offender is authorized to resume driving and require ignition interlock usage beginning with the first DUI offense; 5) amend KRS 189A.340 to establish an assistance fund for indigent defendants; 6) amend KRS 189A.410 to require ignition interlock usage while an offender is driving on a hardship license.

Kentucky DUI Attorney Stephen Isaacs of Isaacs Law Office has learned that some Kentucky courts are considering sentencing alternatives to jail for DUI offenders. One such alternative involves continuous alcohol monitoring using a bracelet attached to an offender's leg.

Evidenced-Based Continuous Alcohol Monitoring with a SCRAM bracelet allows those accused or convicted of DUI to maintain their sobriety and possibly avoid jail, while increasing public safety, along with:

Letting offenders maintain family obligations, hold jobs, and contribute positively to the community

SCRAMx is more commonly used with repeat DUI/DWI offenders, but can also ordered on first-time offenders who have aggravated circumstances like an extremely high blood alcohol content (BAC). Courts may order DUI/DWI offenders on SCRAMx to not only deter them from drinking – and driving – for a specified time period, but also to assess their alcohol dependency levels to recommend individualized courses of treatment.

Detecting if the offender drinks prior to trial to facilitate early intervention

Helping offenders prove extended sobriety to be considered for driver’s license reinstatement

Allowing the offender to maintain job and family obligations, and contribute positively to the community while awaiting trial

With regard to placing DUI/DWI offenders under house arrest in addition to alcohol monitoring, data from NHTSA’s Traffic Safety Facts 2008 shows how this approach makes perfect sense from a public safety standpoint. According to NHTSA, the prime hours for alcohol-impaired fatal crashes are between 9:00 pm and 6:00 am – the highest (64%) being from midnight to 3:00 am. Knowing that some of their higher-risk offenders may backslide during the evening hours, judges can impose curfews during that time to keep them off the roads and better protect the community. The SCRAMx monitors the DUI offender's compliance with the court imposed curfew.

The costs of a DUI are increasing. Everybody knows that a DUI charge and conviction can devastate most people financially. MSN Money reports that a typical first time DUI costs around $10,000 after court costs, fees, towing, and increases in insurance, assuming there was no collision at the time of the DUI stop.

So How Did They Arrive at This Figure?

Bail. In order to be released after arrest and after the sobering up, the offender should plan on paying between $150 to $2500 for bail. Note that in Kentucky, after an interview by pretrial services, the offender could be released on their own recognizance or find themselves paying up to $2500 for bail, assuming there were no additional charges besides the DUI.

Insurance. As attorneys and DUI offenders know, a DUI stop can drastically affect the price of auto insurance. Some insurance companies will drop offenders upon learning of the charge – even before a conviction. Yet others will place the convicted offender in the high-risk category and increase their premiums. MSN Money estimates the insurance cost to be $4,500 or more on a national basis. It could take between three to eight years of “clean” driving for premiums to go back to a preferred status. In Kentucky, this attorney is aware of at least one insurance company which does not raise rates for a DUI-1st conviction.

Fines. For a DUI 1 st conviction, the fines and court costs will vary, ranging between $600 to $1,200. In Kentucky, based on the county, the fines and court costs for a DUI 1 st conviction are $718.00.

Alcohol Education and Treatment. Upon conviction, states require alcohol assessment and attendance at an education or treatment program. The costs vary. MSN estimates the costs to range from $150 to $2000.

Legal Fees. Then there are the legal fees to consider. MSN Money reports attorney fees ranging from $250.00 to enter a guilty plea, up to $25,000 for a complex and rigorous defense. Note that this does not include investigators to review witness and any other case related expenses.

Detention Center / Jail Fees. In Kentucky, plan on spending additional money for booking fees. Additionally, some Kentucky jails charge a per day fee. If you are lucky enought to be granted home incarceration to serve your time, then plan for additional monitoring fees.

Ignition Locks. In some states, a court may order the installation of an ignition lock to prevent convicted offenders from driving if intoxicated. According to MSN Money, these costs can cost between $75 to $1290 / month, plus an installation fee.

License Reinstatement Fee. According to MSN Money, this fee averages $75.00. In Kentucky, this fee is $40.00.

Blood Testing. In Kentucky, prior to providing evidence for the state in the form of your blood, breath or urine, you have the option of selecting to later have a blood test, which must be paid for at the time of the test. The test costs around $400.

Towing. If the officer choses to have your vehicle towed, it could cost the offender between $100 to $1,200 to reclaim their vehicle. Apparently Chicago charges $1,200 to tow the vehicle.

Intangible Expenses. Then there are the intangible expenses to consider:

September 15, 2009 - The Department of Justice announced it has charged Donald Stoner, of Lancaster County, Pennsylvania, with conspiracy to commit identity fraud in a scheme wherein he targeted DUI offenders in Lancaster and York Counties.

According to the press release by Dennis C. Pfannenschmidt, United States Attorney for the Middle District of Pennsylvania, Stoner would target DUI offenders who hired private attorneys, reasoning that they would have money to steal in contrast to those DUI offenders who used public defenders. Stoner obtained the names of the DUI offenders using the internet, and would then obtain the DUI offender’s personal information directly from the court files in the clerk’s office using an accomplice. From the court files, Stoner and his accomplice obtained the DUI offender’s social security number, drivers license number and other identifying information disclosed in the court documents. Stoner and his accomplice thereafter opened fraudulent bank accounts, created phony email addresses, and applied for loans in the victim’s name.

As a result of this type of identify theft scheme, the clerk of court for York and Lancaster County were asked to redact identifying information from court documents prior to release to the public.

Stoner agreed to plead guilty to the charge. He faces up to five years’ imprisonment and $250,000 in fines upon conviction of the offense.

An issue that surprises many Out-of-State drivers who are charged with Driving Under the Influence (DUI) in Kentucky is how their home state will handle a DUI conviction in Kentucky.

Many drivers charged with DUI in Kentucky believe that if they plead guilty to the DUI in Kentucky, it will not affect them back home. Perhaps their home state will not know about the DUI. Unfortunately, this is usually not the case.

What few people realize, is that driving a vehicle in Kentucky, as in most states, is considered a privilege - not a right. This means that a state can administratively revoke a person's driving privileges according to state public policies. The general rationale, after heavy lobbying and legislative admentents, was to make sure that those individuals accused of DUI would have their driving licenses suspended, regardless of the outcome in the criminal courts.

It has been this attorney's experience that once a person either pleads guilty or is found guilty by a jury, the Kentucky Department of Transportation will report the DUI conviction to the driver's home state. While the driver's home state will not be able to constitutionally bring duplicate DUI charges against the person convicted of DUI in Kentucky, they can invoke administrative revocation of that driver's privilege to drive. A person convicted of DUI-1st in Kentucky may loose their privilge to drive in Kentucky for 30 to 120 days. However, in addition, the same out-of-state driver convicted of DUI-1st in Kentucky may also loose their privilege to drive in their home state for longer periods of time.

Also of importance, the length of the out-of-state administrative suspension may also be dependent of the facts of the DUI arrest.

Fortunately, in limited cases, based on case facts, a Kentucky defense attorney may be able to help the out-of-state driver convicted of DUI in Kentucky to avoid the impact of an administratively suspended driving privilge in the state which issued the driving licence.

The Kentucky General Assembly approved a bill last Friday which added penalties for some Kentucky DUI charges. The bill now goes to Gov. Steve Beshear.

The penalties inside Senate Bill 34 include a provision to lower the blood-alcohol level for which someone could be charged with aggravated DUI from 0.18 to 0.15, and requires those convicted of an aggravated DUI to use an ignition interlock device for six months on the first offense, 12 months for a second offense, and 30 months for a third offense within five years. Furthermore, an ignition interlock device must be used by individuals granted hardship licenses.

Kentucky takes a hard line on drivers of commercial vehicles Driving Under the Influence (DUI) of alcohol or other controlled substances.

Essentially, Kentucky does not permit a person to drive a commercial motor vehicle within Kentucky while having any measurable or detectable amount of alcohol or other controlled substances in his system. Pursuant to KRS 281.210, the driver of a commercial motor vehicle inside Kentucky with any detectable amount of alcohol or controlled substance in his (or her) system or who refuses tosubmit to the test required in KRS 281A.220 will be placed out of service for twenty-four (24) hours.

Additionally, according to KRS 281A.190, Kentucky disqualifies drivers from driving a commercial motor vehicle for ONE year if convicted of driving a commercialmotor vehicle under the influence of alcohol OR for driving said commercial motor vehicle while their blood, breath, or urine alcohol concentration is 0.04 or more OR for leaving the scene of an accident, for using the commercial motor vehicle in the commission of a felony listed in KRS 186.560 OR for refusing to submit to testing pursuant to KRS 281A.220. Note that the disqualification period increases from ONE year to THREE years if the person transported a hazardous material required to be placarded at the time of the violation.

Furthermore, Kentucky disqualifies for LIFE those persons convicted of two (2) or more violations of any of the afore-listed offenses arising from two (2) or more separate incidents. The disqualification for LIFE also applies to persons using a commercial motor vehicle in the commission of any felony involving the manufacture, distribution, or dispensing of a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance.

Pursuant to Kentucky law, a period of suspension, revocation, or disqualification imposed by Kentucky will not be reduced. Furthermore, after conviction, Kentucky will report the suspension, revocation, or disqualification to the state issuing the commercial driver’s license.

The penalties for a Driving Under the Influence (DUI) conviction in Kentucky increase with each DUI conviction. Persons with in-state and out-of-state DUI convictions which are less than five years old and who are subsequently charged with DUI in Kentucky may find themselves charged with an enhanced DUI (i.e.: DUI 2nd, DUI 3rd, etc.).

The authority for this is found in KRS 189A.010(5)(e). Kentucky extended prior convictions to include all convictions in Kentucky and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one's driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated.

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